{"id":36526,"date":"2025-11-25T14:38:02","date_gmt":"2025-11-25T19:38:02","guid":{"rendered":"https:\/\/www.thenewatlantis.com\/?post_type=article&p=36526"},"modified":"2025-12-15T13:39:30","modified_gmt":"2025-12-15T18:39:30","slug":"who-decides-on-emergency-abortions-after-roe","status":"publish","type":"article","link":"https:\/\/www.thenewatlantis.com\/publications\/who-decides-on-emergency-abortions-after-roe","title":{"rendered":"Who Decides on Emergency Abortions After Roe<\/em>?"},"content":{"rendered":"\n

Around the country, pro-choice advocates say, new state-level restrictions on abortion are leaving doctors afraid to intervene in emergency pregnancies. Pro-life advocates say that the letter of these laws is clear \u2014 that they explicitly list emergency medical conditions for which doctors can legally intervene, and, beyond that list, also protect doctors who make good-faith judgments in situations in which the life of the mother may be at risk.<\/p>\n\n\n\n

Who is right?<\/p>\n\n\n\n

The conflict might reside not in the law itself, but just outside it. At least some doctors are willing to say that what is tying their hands is not the law but hospitals, where legal committees are prioritizing conservative risk management over the needs of women, babies, and even their own physicians.<\/p>\n\n\n\n

The clearest evidence that this is happening comes from a report assembled by U.S. Senator Ron Wyden from Oregon. Released in December 2024, it has received little public attention. Look inside this report and you will find a rare example of something that pro-lifers and pro-choicers should be able to agree on: hospitals are shirking their responsibility and need to change how they are responding to the legal landscape after Roe v. Wade<\/em>.<\/p>\n\n\n

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\r\n\t\tThe Last Mile of the Law\t<\/h5>\r\n<\/div><\/div>\n\n\n

Since the Supreme Court\u2019s 2022 decision in Dobbs v. Jackson Women\u2019s Health Organization<\/em>, which overturned Roe<\/em>, abortion law is again in the hands of state legislators. While many blue states have loosened restrictions, as of this writing 19 states<\/a> have abortion bans in effect or have tightened restrictions.<\/p>\n\n\n\n

But what does this actually mean in practice \u2014 especially for doctors and hospital administrators who oppose the new restrictions?<\/p>\n\n\n\n

Legislators make laws, but the last mile of legal interpretation \u2014 the details of how the laws are implemented \u2014 depends on the good faith of institutions and individuals. When a law is ambiguous or the consequence of violation is high, the moat of prohibited behavior it creates may in practice be wider than lawmakers intended.<\/p>\n\n\n\n

Consider a similar situation in a different arena: HR departments\u2019 implementations of civil rights law. Employment law does not include an exhaustive list of all practices that could constitute a \u201chostile work environment,\u201d so employers make different choices about what level of ambiguity they can tolerate, and set their norms and policies accordingly.<\/p>\n\n\n\n

The administrators who make these bureaucratic judgments are more removed from traditional democratic checks than the legislators who write the laws. Your HR lead cannot be defeated in the next election. You cannot see the judicial rulings made by your office\u2019s tribunal in prior cases and appeal to legible precedent. Instead, there are a series of tone-deaf video trainings to watch, which in most cases seem more about insulating the business from legal risk than about offering instruction and ultimately protecting against discrimination. Once you hit \u201csubmit\u201d on the final page, you were officially warned! Whether you support or oppose the aims of civil rights law, you\u2019re likely to be frustrated by how it is implemented in practice.<\/p>\n\n\n\n

The same pattern appears now to be playing out in abortion law, where implementation in apparent gray zones depends on hospital policies. One point of potential ambiguity in the new pro-life laws is whether they prevent doctors from intervening in emergencies that threaten the life of the mother or the baby, such as ectopic pregnancies. Pro-choice advocates have argued that they do \u2014 that doctors have begun to decline emergency care to pregnant women in crisis out of fear of prosecution under pro-life laws, because emergency care means the termination of pregnancies. Pro-life advocates, again, say the letter of the law is actually clear, explicitly protecting doctors in this situation. The actual problem may reside in the last mile of legal interpretation.<\/p>\n\n\n

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\r\n\t\t\u2018All of This Became Very Confusing\u2019\t<\/h5>\r\n<\/div><\/div>\n\n\n

In the fall of 2024, ProPublica<\/em> published<\/a> a series<\/a> of articles<\/a> on abortion<\/a>– and pregnancy<\/a>-related deaths, finding that several women had died due to delays in receiving proper medical care. Amid these revelations, in September 2024 the office of Senator Ron Wyden (D.\u2013Ore.) sent letters to eight hospitals in states with pro-life laws, requesting information about what guidance hospitals provided to staff on the new abortion bans.<\/p>\n\n\n\n

Hospitals are held to a high standard when a pregnant woman turns up in the ER. In 1986, President Reagan signed into law the Emergency Medical Treatment and Active Labor Act, or EMTALA, which requires<\/a> hospitals to provide care to patients arriving in their facilities with emergencies. These emergencies include pregnant women who are in labor, whose life may be in danger, or whose unborn child\u2019s life may be in danger. Wyden was specifically focused on understanding how hospitals were handling conflicts between this law and state abortion law. He sought a range of documentation, including \u201chospital policies, processes, and procedures related to state abortion laws and emergency reproductive health care\u201d as well as \u201cany legal or human resource support provided to staff navigating the conflict between a state abortion ban and the medical standard of care when a patient presents in need of emergency medical care.\u201d<\/p>\n\n\n\n

Wyden also convened emergency room physicians, family medicine physicians, and OB-GYNs for roundtable conversations, where they could anonymously share how these laws and hospital guidance had affected their ability to practice. Wyden then published a summary of conclusions in his report, and in a Senate hearing presented some of the documents<\/a> the hospitals had provided.<\/p>\n\n\n\n

A recurring theme in Wyden\u2019s report, titled \u201cPracticing Amid \u2018a Minefield,\u2019<\/a>\u201d is that many hospitals had not updated their guidance on how to comply with EMTALA since the Dobbs<\/em> decision in 2022 and the new state-level abortion restrictions that followed. Some hospitals told doctors to direct their questions to the hospital legal team but didn\u2019t actually provide guidance when asked.<\/p>\n\n\n\n

The doctors convened in Wyden\u2019s roundtables expressed open frustration with their hospital systems. One Tennessee obstetrician said that, at their hospital, \u201cwhen all of this became very confusing, they just disbanded the [hospital] committee\u201d that had been tasked with analyzing the abortion ban and refused to provide guidance to doctors. An ER doctor in Texas faulted their hospital for being reactive in guidance, not proactive. The hospital only offered \u201ceducation about EMTALA when the hospital … was cited for an EMTALA violation.\u201d<\/p>\n\n\n\n

One Louisiana obstetrician said their hospital shared protocols on a \u201cneed to know basis,\u201d creating confusion about what the protocols were and putting patients at risk of getting misinformed by physicians who hadn\u2019t been specifically briefed. An Idaho provider had experienced similar problems where nurses were left out of the loop, and as a result \u201cnurses have been anxious to work with physicians when physicians tell them it is okay to treat a patient. This disrupts care.\u201d A Texas obstetrician expressed blunt frustration with other doctors who interpreted the law on their own: \u201cdoctors [are] telling patients they can\u2019t treat an ectopic pregnancy, which is not true.\u201d<\/p>\n\n\n\n

When hospitals refuse to interpret the law by offering clear protocols, doctors rely on legal consults, which may not be timely. The emergency room is always open, but the hospital\u2019s lawyers may not be pageable round the clock. Multiple doctors told Wyden\u2019s roundtable that they had been ghosted by their hospital\u2019s legal team when they sought guidance. A doctor from Missouri said that the legal team\u2019s responsiveness to questions about abortion was lacking compared to other inquiries. An obstetrician in Idaho reported being stonewalled for two months when requesting a meeting.<\/p>\n\n\n\n

The most charitable defense of these hospitals\u2019 practices is that they are responding to a changing regulatory environment and are reluctant to set firm, transparent guidance before further regulation or judicial precedent are established. In the immediate wake of Dobbs<\/em>, it was possible to believe that the exact boundaries of the law might be clarified by observing which doctors were charged with crimes. But those charges have mostly not materialized. There has been no campaign of deliberate civil disobedience in pro-life states, and there have been no doctors anywhere facing charges for providing abortions in medical crisis situations.<\/p>\n\n\n\n

Instead, the edge cases are about doctors who declined to admit or prematurely discharged women in clear medical crises, a number<\/a> of them<\/a> women whose children were well past viability. For these women, abortion would not have been the standard of care even under Roe<\/em>, and so they did not suffer from abortion bans. Their babies should have been delivered if at all possible, and the women should have received the usual course of treatment for infection, preeclampsia, or whatever other condition.<\/p>\n\n\n\n

These cases suggest that the charitable defense \u2014 that hospitals are simply waiting for legal clarity \u2014 isn\u2019t right. Rather, these women appear to be the victims of a practice called \u201cpatient dumping.\u201d EMTALA is meant to guarantee that an emergency patient, in this case a pregnant woman, cannot be turned away by a hospital due to her under-insurance or inability to pay. Patient dumping is when, in violation of EMTALA, a hospital refuses to admit or prematurely discharges a woman who needs continuing care for her and her baby. Hospitals can be tempted to engage in patient dumping in both pro-life and pro-choice states \u2014 it saves money. In at least one case<\/a>, the doctor who neglected the patient had been cited for lapses in his duty to patients prior to any abortion ban.<\/p>\n\n\n\n

The ordinary recourse for a hospital system struggling to understand a new law is to seek clarification from its state health agency. However, with abortion bans, the incentives tend to work against this process. A hospital system that strongly opposes a ban in any form may not be as interested in seeking precise clarification or permissions. Some abortion advocates even explicitly argue that they should not<\/em> seek exceptions to bans, because doing so \u201ccreates a false hierarchy of who is deserving\u201d of receiving an abortion, as an analyst for the pro-choice Guttmacher Institute put it<\/a>. <\/strong>A hospital that frequently partners with abortion advocates will surely have heard these arguments from its allies.<\/p>\n\n\n

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\r\n\t\tHospitals Model Guidance\t<\/h5>\r\n<\/div><\/div>\n\n\n

There are, however, exceptions. Some hospitals included in Wyden\u2019s report did provide clearer guidance, suggesting that hospitals are capable of addressing this situation if they choose to.<\/p>\n\n\n\n

Piedmont Henry, a hospital in Georgia, offered doctors a \u201cdecision tree for interruption of pregnancy procedures.\u201d The document explicitly states that a doctor who identifies a medical emergency (as defined by EMTALA) that requires an abortion is cleared to proceed. Wyden\u2019s report highlighted this decision tree as a model for other providers.<\/p>\n\n\n\n

Another hospital, Holmes Regional Medical Center in Florida, specifically instructed doctors that, in an emergency, doctors were not required to go through the traditional abortion approval process.<\/p>\n\n\n\n

And a Missouri health provider, Freeman Health Systems, provided staff with a detailed legal memo, explaining the definitions both of abortion and of medical emergency. The memo included \u201can assurance that the hospital will provide full civil and criminal defense of providers who are sued or prosecuted under state law after rendering care in compliance with the medical standard of care, hospital policies, and in a good faith effort to comply with state law.\u201d<\/p>\n\n\n\n

If more hospital systems took this comprehensive and clear approach, doctors and patients would be better served.<\/p>\n\n\n

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\r\n\t\tHow States Can Help\t<\/h5>\r\n<\/div><\/div>\n\n\n

Since not all hospitals have been proactive, some states have tried to clarify their laws. In South Dakota, the state legislature passed a law that directed<\/a> the Department of Health to consult with the state attorney general and with medical and legal experts to create an explanatory video that would cover:<\/p>\n\n\n\n

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  1. The state\u2019s abortion law, and acts that do and do not constitute an abortion under it;<\/li>\n\n\n\n
  2. The most common medical conditions that threaten the life or health of a pregnant woman;<\/li>\n\n\n\n
  3. The generally accepted standards of care applicable to the treatment of a pregnant woman experiencing life-threatening or health-threatening medical conditions; and<\/li>\n\n\n\n
  4. The criteria that a practitioner, exercising reasonable medical judgment, might use in determining the best course of treatment for a pregnant woman experiencing life-threatening or health-threatening medical conditions and for her unborn child.<\/li>\n<\/ol>\n\n\n\n

    The resulting video<\/a> is just under six minutes long. In it, Melissa Magstadt, South Dakota\u2019s Secretary of Health, enumerates possible life-of-the-mother emergencies in which abortion is legal \u2014 like maternal hemorrhage, including a level of red blood cells low enough to indicate life-threatening bleeding. It also lists much less common complications like uncontrolled lupus nephritis. It rules all cases in which a woman\u2019s water breaks at 24 weeks or earlier as qualifying under the statute.<\/p>\n\n\n\n

    Magstadt emphasizes that the list is not exhaustive. She also points out that just because a pregnant woman has a condition on this list does not mean an abortion is appropriate care for her. If, for example, a woman\u2019s water breaks at 23 weeks but she has no sign of infection, she might elect watchful waiting. The video is intended to give doctors and hospital systems more confidence that they can use reasonable medical judgments in emergencies. They shouldn\u2019t be conservative about providing care, but should simply be thorough in their documentation.<\/p>\n\n\n\n

    While South Dakota clarified its existing law by adding official guidance, Texas has chosen to amend it. Texas\u2019s SB 31 passed in June 2025 and was supported<\/a> by both pro-life and pro-choice legislators. The bill was intended to clear up a common claim against these laws: that they require a doctor to wait for a potentially life-threatening condition to develop into an active emergency before they can legally perform an abortion. The law states<\/a>, \u201cif a pregnant woman has a life-threatening physical condition …, a physician may address a risk … before the pregnant female suffers any effects of the risk.\u201d<\/p>\n\n\n\n

    This amendment made explicit what the Texas Supreme Court had already held was implicit in the prior abortion ban. As the court\u2019s 2024 decision stated<\/a> in Zurawski v. State of Texas<\/em>:<\/p>\n\n\n\n

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    A physician who tells a patient, \u201cYour life is threatened by a complication that has arisen during your pregnancy, and you may die, or there is a serious risk you will suffer substantial physical impairment unless an abortion is performed,\u201d and in the same breath states \u201cbut the law won\u2019t allow me to provide an abortion in these circumstances\u201d is simply wrong in that legal assessment.<\/p>\n<\/blockquote>\n\n\n\n

    Idaho\u2019s state Supreme Court offered<\/a> a similar ruling on emergencies and imminent risk of death.<\/p>\n\n\n

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    \r\n\t\tWho Benefits from Confusion\t<\/h5>\r\n<\/div><\/div>\n\n\n

    It is hard to say how many other states will follow South Dakota\u2019s and Texas\u2019s examples. In 2023, Dr. Sarah Osmundson spoke out publicly<\/a> about pro-choice groups reluctant to clarify or improve abortion bans. Osmundson is a pro-choice maternal fetal medicine specialist in Tennessee. She opposes her state\u2019s abortion ban on principle, but she also thought it was badly written. She attempted to get the American College of Obstetricians and Gynecologists, of which she is a member, on board with a reform effort. The association declined, saying it \u201ccannot support legislation that does not fully restore abortion rights or that allows for governmental interference in reproductive health care.\u201d<\/p>\n\n\n\n

    A year later, a Vox<\/em> article by reporter Rachel Cohen Booth confirmed<\/a> that many pro-choice groups still held to this position. In the article, Rachana Desai Martin, then the chief government and external relations officer at the Center for Reproductive Rights, said that her organization saw amending exemption laws as futile work: \u201cAs we are seeing across the country, exceptions often don\u2019t work in practice, so people should not take comfort in those or rely on them.\u201d Planned Parenthood stated that it opposed health exemptions because they privileged some abortions above others. For these groups, the aim is for the bans to be overturned in toto rather than simply clarified or refined incrementally.<\/p>\n\n\n\n

    When a legislator passes a bad law, she or he faces consequences at the next election. When a judge interprets a law badly, the error is public and subject to appeal. Hospital committees and advocacy groups have more power to distort law without democratic oversight. This doesn\u2019t require active bad faith on the hospital\u2019s part, but doctors are left to wonder why their institution would leave them exposed without guidance. Hospital rules are much less transparent and receive less scrutiny than state law, which makes it hard for advocates for women and babies to focus their efforts in the right place. States should continue to attempt to refine laws to make even bad-faith readings difficult, but most bans already offer protection to women and doctors. When a hospital or advocacy group manufactures confusion and delay, it is responsible for the consequences to women and babies.<\/p>\n\n\n

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